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Whitney v. Township of Hillsborough

A-3292-02T2 (N.J. Super. App. Div. 2004) (Unpublished)

ZONING; PRIVATE ROADS—Evidence that, a prior property owner referred to land as formerly being a public road or originally being a public road in an old land use proceeding is sufficient to overturn a default judgment that held the road in question to be a public road.

Property owners sent an application to the local planning board requesting approval to subdivide their three-acre lot into three parcels. The board needed to know whether an access road to the property was public or private in nature. If it were private, a variance for subdivision on a private road would be required. The owners were therefore directed to appear before the municipality’s governing body to obtain a clarifying resolution.

Without going to the municipality, the owners obtained a default judgment declaring the road to be public. Three months later, the municipality moved to vacate the default judgment. Although the lower court found that excusable neglect had been demonstrated, it would not vacate the judgment because it believed that the municipality had failed to demonstrate a meritorious defense to the owners’ claims.

The only evidence presented by the municipality was that a prior owner, when applying for a variance, and later while conveying its land, referred to the land as “formerly a Public Road,” and “originally a public road.” Based on that history, the municipality asked the lower court to conclude that the road was a private one. The municipality also pointed to a local Township Committee resolution that governed future maintenance of private streets including the road in question.

The Appellate Division reversed the lower court’s ruling. It believed that what the municipality presented pointed to at least the existence of a meritorious defense.

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